Bringing atrocity criminals to justice

By David Scheffer

Financial Times

Published: February 2 2005

It is
unsurprising that the United Nations Darfur inquiry has concluded
that the atrocities occurring in the west Sudanese region did not
constitute a policy of genocide. Rather, the five experts found that
widespread and systematic violations of international law, perhaps
constituting crimes against humanity, had occurred and that named,
but undisclosed, individuals were responsible for the carnage.

The commission would have taken a significant risk, in the three
months it had, in both defining certain atrocities as “genocide” and
identifying the perpetrators who acted with the requisite intent “to
destroy, in whole or in part, a national, ethnical, racial or
religious group, as such”. It has taken years of investigative work
by the Yugoslavia and Rwanda international criminal tribunals to
match the “acts of genocide” to high-level perpetrators under
indictments charging them with the specific intent to commit those
acts.

The quest for a finding of “genocide” in Darfur should remain an
essential objective in the courtroom and among governments. With the
legacy of inaction in Rwanda much on its mind, the US believes
genocide occurred in Darfur. But Washington has failed to stop the
atrocities. The Genocide Convention requires parties “to prevent and
to punish” the crime of genocide, but lays out no means by which to
achieve prevention. No nation would have ratified the convention if
it had forced them to use national militaries in foreign wars to
stop genocide. But the duty to prevent genocide can be met only if
nations are prepared to act effectively against atrocities long
before lawyers prove the case for genocide.

Determining “genocide” is largely beside the point. War criminals
ignore the legal wrangling over definitions. Their agenda remains
secure: atrocities that have claimed tens of thousands of lives,
displaced an estimated 2m Sudanese, unleashed daily rapes and
destroyed hundreds of villages. We need to redefine the basket of
crimes known as serious war crimes, crimes against humanity
(including ethnic cleansing) and genocide simply as “atrocity
crimes” and let prosecutors and judges determine which perpetrator
committed which type of crime.

Meanwhile, governments, international organisations and the
public must move quickly to prevent further attacks on civilians and
ensure the means exist to bring leading perpetrators to justice
soon. Ideas on prevention abound - from targeted sanctions on the
Sudanese government to a much-strengthened African Union or
multinational force, empowered to protect all civilians under a
tough Security Council mandate.

The drive to make individuals accountable could be given impetus
if the Security Council referred the Darfur situation to the
International Criminal Court - an idea strongly recommended in the
Darfur report. The ICC’s statute permits such referrals under
Security Council enforcement authority, meaning that Sudan (a
non-party to the ICC) would be compelled to allow investigators on
its territory and to surrender indicted suspects to the court. The
Bush administration, long opposed to the ICC, has proposed building
a new hybrid court led by the African Union and using the facilities
of the Rwanda tribunal in Arusha.

The Bush plan is unrealistic and inconsistent. African and
European governments are parties to the ICC and will find any new
Arusha court with dubious powers of investigation and enforcement a
costly and far more inefficient means of handling justice in Darfur.
It could take years to set up the hybrid court, and the US would
doubtless have to finance its budget of hundreds of millions of
dollars.

I spent years negotiating to fulfil the US desire for an ICC that
would be prompted to take action by the Security Council. Given the
opportunity to activate the ICC in precisely that way, George W.
Bush now balks. The council’s resolution could be written to confine
the ICC’s jurisdiction to Sudanese suspects and territory and a
limited period. The resolution could recommend to the General
Assembly that any UN funding for the ICC investigation of Darfur
should be voluntary. It could also exempt from surrender to the ICC
any multinational forces deployed to Darfur by nations not party to
the ICC - Washington’s probable quid pro quo demand. The US should
let Europeans lead in persuading Russia and China of the merits of a
council referral and then, if Mr Bush still fears the legitimacy of
the ICC, abstain on the referral vote. Millions of Darfur victims
would still applaud Mr Bush.

The writer, former US ambassador at large for war crimes
issues (1997-2001), is a visiting professor at the George Washington
University Law School